NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 16-1023

_____________

UNITED STATES OF AMERICA

v.

RASSOL CHINA,

 Appellant 

_____________

 

On Appeal from the United States District Court

for the District of New Jersey 

District Court No. 2-15-cr-00203-002

District Judge: The Honorable Jose L. Linares

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

September 29, 2016

Before: AMBRO, SMITH, and FISHER, Circuit Judges

(Filed: October 4, 2016) 

_____________________

 OPINION*

_____________________ 

 

SMITH, Circuit Judge.

 

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
2

A grand jury in the District of New Jersey returned an indictment against 

Rassol China and four other individuals, charging China with conspiring to 

distribute heroin in violation of 21 U.S.C. § 846 and distribution of heroin in 

violation of 21 U.S.C. § 841(b)(1)(A) and 18 U.S.C. § 2. These charges were filed 

after the police knocked and announced themselves at a heroin operation in a third 

floor apartment, prompting China and three others to jump out of the apartment 

window (the police apprehended the fifth individual before they entered the 

apartment building). China apparently fractured his heels in the jump, but 

nonetheless was able to reach his car, drive directly toward a law enforcement 

officer, almost hitting him, and elude capture. Law enforcement subsequently 

apprehended China in the hospital where he was receiving treatment. 

Thereafter, China pleaded guilty pursuant to a written plea agreement that 

included an appellate waiver. A presentence report was prepared, which 

determined that China was a career offender because of multiple controlled 

substance convictions. See U.S.S.G. § 4B1.1. Although China initially challenged 

the applicability of the career offender enhancement, defense counsel withdrew 

that challenge at sentencing. The enhancement resulted in an offense level of 34

and a criminal history category of VI, yielding an advisory Guideline range of 262 
3

to 327 months.1 The District Court sentenced China to 262 months of 

imprisonment.

This timely appeal followed.2 Counsel submitted an Anders brief and a 

motion seeking to withdraw as counsel. See Anders v. California, 386 U.S. 738, 

744 (1967). After reviewing the Anders brief, we are satisfied that counsel 

“thoroughly examined the record in search of appealable issues” and adequately 

“explain[ed] why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 

300 (3d Cir. 2001). 

China’s guilty plea limited the issues he could challenge on appeal to 

whether he could be haled into court on the charges in the indictment, the validity 

of his guilty plea, and the legality of the sentence imposed. See United States v. 

Broce, 488 U.S. 563, 570-75 (1989). Counsel explained at length that the guilty 

plea colloquy largely complied with the requirements of Federal Rule of Criminal 

Procedure 11(b). Counsel appropriately noted that the colloquy did not advise

China, contrary to Rule 11(b)(1)(H)’s directive, of the maximum possible penalty 

of life imprisonment. This omission, counsel explained, would not warrant setting 

aside China’s conviction because plain error review applied under United States v. 

 

1 Before the PSR applied the career offender enhancement, China’s offense level,

without the acceptance of responsibility adjustment, was 32 and his criminal 

history category was VI.

2 The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise 

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. 
4

Vonn, 535 U.S. 55, 59 (2002), and the error did not affect China’s substantial rights 

as the plea agreement explicitly set out the minimum and maximum sentence at 

play. The government agreed that China was well aware of the statutory maximum 

of life imprisonment, noting it was set forth in his plea agreement, as well as in a 

document entitled “Application for Permission to Enter Plea of Guilty” that China 

signed after reviewing it with counsel. We agree that this omission in the plea 

colloquy did not affect China’s substantial rights.

Defense counsel also recognized in the Anders brief that China’s plea 

agreement contained an appellate waiver. The government acknowledged that the 

colloquy with regard to the appellate waiver was deficient in certain respects and

elected not to enforce the waiver.3 Because the government did not invoke the 

appellate waiver, we need not examine whether the waiver was valid and bars our 

review. See United States v. Goodson, 544 F.3d 529, 535 (3d Cir. 2008). We note, 

however, that even if the appellate waiver were unenforceable, that would result in 

setting aside only the waiver (not the District Court’s judgment) and removing any 

bar to our review. Id. at 541. 

Having concluded there is no basis for setting aside China’s guilty plea, we 

turn to the legality of China’s sentence, which is reviewed for an abuse of 

 

3

Indeed, China’s pro se submission, which he filed pursuant to Third Circuit 

L.A.R. 109.2(a), also notes there was error in the District Court’s review of the 

terms of the appellate waiver.
5

discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). We 

conclude that the District Court did not abuse its discretion in sentencing China to 

262 months of imprisonment.

Counsel noted that the District Court arguably erred in applying an 

enhancement for obstruction of justice under U.S.S.G. § 3C1.2 because that 

enhancement was not contemplated as part of the plea agreement.

4

 Nonetheless, 

counsel acknowledged that application of this enhancement does not entitle China 

to relief. We agree. The § 3C1.2 obstruction of justice enhancement affected only 

the total offense level of 32, which was rendered inoperative once it was 

determined that the offense level from the career offender table was “greater than 

the offense level otherwise applicable.” U.S.S.G. § 4B1.1(b). Thus, the District 

Court did not err in calculating the Guideline range under the career offender 

guideline. Nor do we discern any procedural error as there were no motions by 

China for the District Court to rule upon and the Court fully considered the 

argument for a downward variance. The within-Guideline sentence, given the 

Court’s explanation for the sentence imposed, was not substantively unreasonable. 

 

4 We note that China’s pro se submission also took issue with the propriety of the 

obstruction of justice enhancement. In his view, application of the enhancement 

constituted a breach of the plea agreement. Because it is the District Court that 

determines the applicable Guideline range, the government did not breach the plea 

agreement. Indeed, the plea agreement advised that “[t]he sentence to be imposed

. . . is within the sole discretion of the sentencing judge” and that the prosecution 

was not making “any representation or promise as to what guideline range may be 

found by the sentencing judge.” 
6

For the reasons set forth above, we will affirm the judgment of the District 

Court. Because our own independent review of the record fails to reveal any 

nonfrivolous issues for appeal, we will grant counsel’s motion to withdraw and 

affirm the judgment of the District Court. We certify that the issues presented in 

the appeal lack legal merit and thus do not require the filing of a petition for writ of 

certiorari with the Supreme Court. 3d Cir. L.A.R. 109.2(b).